Quiet Technology Dc-8 v. Hurel-Dubois Uk Ltd., 02-14370.

• Decision Date: 11 April 2003
• Docket Number: No. 02-14370.,02-14370.
• Parties: QUIET TECHNOLOGY DC-8, INC., as a general partner of Quiet Technology Venture Ltd., d.b.a. Joint Venture of Quiet Nacelle Corporation, Quiet Technology, Inc., Plaintiffs-Counter-Defendants-Appellants, v. HUREL-DUBOIS UK LTD., Defendant-Counter-Claimant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

326 F.3d 1333

QUIET TECHNOLOGY DC-8, INC., as a general partner of Quiet Technology Venture Ltd., d.b.a. Joint Venture of Quiet Nacelle Corporation, Quiet Technology, Inc., Plaintiffs-Counter-Defendants-Appellants, v. HUREL-DUBOIS UK LTD., Defendant-Counter-Claimant-Appellee.

No. 02-14370.

United States Court of Appeals, Eleventh Circuit.

April 11, 2003.

COPYRIGHT MATERIAL OMITTED

Roy D. Wasson, Miami, FL, Carl H. Hoffman, Hoffman & Hertzig, P.A., Coral Gables, FL, for Plaintiffs-Counter-Defendants-Appellants.

Jonathan M. Stern, Washington, DC, J. Denny Shupe, Philadelphia, PA, for Defendant-Counter-Claimant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HULL, MARCUS and FARRIS^*, Circuit Judges.

MARCUS, Circuit Judge:

Although this case arises in a technologically sophisticated context, the evidentiary issues it presents are straightforward. At its core, this appeal requires us to determine whether the district court abused its discretion by admitting, and subsequently rejecting a post-trial challenge to, the testimony of Joel Frank ("Frank"), an expert in computational fluid dynamics ("CFD") for appellee Hurel Dubois UK, Ltd. ("Hurel"). We also must evaluate the propriety of the district court's refusal to appoint an independent expert to assess the reliability of Frank's proffered testimony and its denial of a motion for a continuance filed by appellant Quiet Technology DC-8, Inc. ("Quiet"). After considering the arguments raised in the parties' briefs and at oral argument, we conclude that despite the scientific complexity of the testimony in question the district court performed its critical gatekeeping function in admirable fashion, perceive no abuse of discretion in any of the rulings challenged on appeal and, accordingly, affirm.

I.

A detailed recitation of the facts and expert opinion testimony offered is essential to understanding this case. Quiet is a corporation that during the mid-1990s was engaged in the development and manufacture of "hush kits" for the Pratt & Whitney JT3D fanjet engine, which powers the Douglas DC8 aircraft. The purpose of these kits was to reduce the noise generated by the JT3D so as to render the engine compliant with federal "Stage 3" noise reduction regulations. See 14 C.F.R. Part 36. To accomplish their quieting function, appellant's kits employed two "ejectors," which were placed on either side of the rear of the engine and acted as mufflers. Each ejector was essentially an open section of cowling¹ that covered the engine area immediately above and behind the fan exit. These ejectors performed their "hushing" function by diverting the flow of ambient air passing over the cowling, i.e., over the outside of the engine, and mixing that air with the faster-moving exhaust air coming from the engine fan exit. This mixing of airflows had the effect of reducing the noise generated by the engine.

Each side of the JT3D fan jet engine has a fan exit, and accordingly Quiet's hush kit featured an ejector on each side as well. Complicating the placement of these ejectors, however, was the fact that the JT3D also has a thrust reverser that is associated with each fan exit.² This is important because the ejector could not be placed over the fan exits in the absence of some modification to the thrust reversers. Accordingly, during the spring of 1993 Quiet entered into a contract with Hurel pursuant to which Hurel was to design a thrust reverser for the JT3D that would be compatible with Quiet's ejector. Quiet describes the design created by Hurel in these terms:

[Appellee] replaced the original JT3D reverser with a "pivoting door" design that used the forward section of the ejector as a pivoting thrust reverser. When the engine was placed in reverse, the thrust reverser (i.e., the ejector forward section) pivoted down into the fan flow so as to block and reverse the engine thrust. To pivot the thrust reverser, [Hurel's] design included reverser pivot arms, hinges, brackets, pushrods and a locking device and cavity ("reverser linkages") placed directly behind and within the thrust flow of the engine fan.³

Thus, the new thrust reverser consisted of Quiet's ejector plus the reverser linkages designed by Hurel.

Quiet opted against model — i.e., wind tunnel — testing of the thrust reverser and instead skipped straight to full scale, inflight testing of the device. These tests were conducted upon the delivery of prototype reversers to appellant in November, 1996. Unfortunately, these trials revealed that the DC-8 was unable to climb or cruise as quickly as it could in the absence of the new thrust reverser. In fact, by Quiet's account, performance losses exceeding 25% were experienced at cruise altitude, although these losses were less pronounced at lower altitudes and slower speeds. Quiet accounts for these losses as follows:

In forward flight, when the thrust reverser serves as the forward section of the ejector, the reverser linkages partially block the fan flow. As the fan flow reaches supersonic speeds,⁴ that partial blockage causes the formation of shock waves, which in turn cause airflow disruption that reduces engine performance.

Hurel, by contrast, attributes the performance degradation not to the reverser linkages, but instead to the design of the hush kit itself, and specifically to drag created by the leading edge of the ejector. In this vein, appellee says that Quiet knew in advance that its hush kit would degrade in-flight performance.

In an effort to rectify this diminution in performance, in 1998 Quiet retained Analytical Methods, Inc. ("AMI") to conduct a CFD study on the hush kit. CFD is a relatively new⁵ scientific discipline that uses computer models to measure fluid dynamics, e.g., the flow of air around and through a jet engine. AMI reported that the leading edge of Quiet's ejector was defective, and it designed a new ejector edge, which it called a "droop snoop," to correct what it termed an "oversized thrust reverser inlet and the associated losses due to inlet spillage and compressibility effects (lip shock)." Appellant says that although it replaced the leading ejector edge with the droop snoop, it achieved only a minimal improvement in performance.

Quiet subsequently consulted with Synaps, Inc., which determined that AMI's CFD analysis was flawed because it had not used the correct inflow and boundary conditions.⁶ Instead, it found that the performance losses resulted from shock waves caused by the reverser linkages during periods of supersonic airflow through the engine. According to Synaps, these shock waves reduced the thrust generated by the JT3D. Synaps recommended embedding Hurel's reverser linkages in the walls of the ejector so as to remove them from the flow of air through the engine. However, neither this nor any other modification to appellee's thrust reverser was economically feasible. Moreover, the market for hush kits evaporated on December 31, 1999, the date by which all aircraft were required to be in compliance with the federal noise regulations. As such, Quiet alleges, Hurel's thrust reverser ultimately proved to be worthless.

Based on this pattern of dealing, Quiet brought suit against Hurel on August 16, 2000 in the state Circuit Court for the Eleventh Judicial Circuit, in and for Miami-Dade County. It asserted claims sounding in fraud, negligent misrepresentation, breach of contract and breach of fiduciary duty. It sought to recover the advance payments it had made to Hurel for the allegedly defective thrust reversers, monies that it had expended in investigating the cause of the performance degradation, $4.5 million that it had spent attempting to improve appellee's original design, lost profits and expenditures resulting from its manufacture of unuseable hush kits and lost profits from unrealized hush kit sales. Shortly thereafter Hurel removed the case to the United States District Court for the Southern District of Florida. Discovery proceeded, and a trial date of December 17, 2001 was set. However, in August, 2001, Hurel filed an unopposed motion to modify the scheduling order. The district court granted appellee's motion, and the trial was rescheduled for March 18, 2002. In December, 2001, the parties filed a joint motion in which they asked the court to extend various discovery deadlines, but not the trial date. On December 28, 2001, the district court granted this motion as well.⁷

On January 23, 2002, Hurel produced a copy of a CFD report that had been prepared by Joel Frank, an expert who it intended to call at trial. Subsequently, on February 4, 2002, Quiet again moved for a continuance of the trial date. In support of this request Quiet cited (1) its need to study Frank's report; (2) its need to complete its depositions of Frank and other testifying experts; (3) the failure of its own expert (Frank Lynch ("Lynch")) to complete his analysis; (4) its need to study 28,000 pages of engineering data that Hurel had produced on December 27, 2001; and (5) the fact that Quiet's lead counsel was in the middle of moving his offices. After a hearing, however, the district court denied this motion, although it did postpone the trial one additional week until March 25, 2002. On February 26, 2002, Frank replaced his report with a corrected version, and Quiet deposed him on March 5, 2002. Also on February 26, 2002, the district court set a March 15, 2002 deadline for the filing of motions. Although appellee filed a Daubert motion prior to this deadline, appellant failed to do so, opting instead to announce at the pretrial conference (which was conducted five days before trial) that it would be challenging the admissibility of Frank's proffered opinions.

Frank is an aerodynamics specialist who at the time of trial had nearly 20 years experience with CFD, having conducted over 40 studies using the discipline. In September, 2001, he began a CFD study of Quiet's hush kit...